Tucker v. Labor Leasing, Inc.

• Decision Date: 21 September 1994
• Docket Number: No. 93-1259-Civ-J-10.,93-1259-Civ-J-10.
• Citation: 872 F. Supp. 941
• Parties: David S. TUCKER, and all employees of the Defendants who are similarly situated, Plaintiffs, v. LABOR LEASING, INC., etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

872 F. Supp. 941

David S. TUCKER, and all employees of the Defendants who are similarly situated, Plaintiffs, v. LABOR LEASING, INC., etc., et al., Defendants.

No. 93-1259-Civ-J-10.

United States District Court, M.D. Florida, Jacksonville Division.

September 21, 1994.

Arthur George Sartorius, III, W. Kelsea Wilber, Sartorius & Wilber, P.A., Jacksonville, FL, for plaintiffs.

Peter Reed Corbin, Richard Neal Margulies, Corbin, Dickinson, Duvall & Margulies, Jacksonville, FL, for defendants.

ORDER

SCHLESINGER, District Judge.

Before this Court are Plaintiffs' Motion to Approve Notice to Potential Class Members (Doc. 12) and Defendants' Motion for Sanctions (Doc. 19). The motion was considered by the United States Magistrate Judge pursuant to this Court's order of February 9, 1994, (Doc. 24), who has filed his report recommending that the Motion to Approve Notice to Potential Class Members be GRANTED, but limit notice to clerical employees from Defendant Gator's Jacksonville terminal, and direct the parties to meet and agree on a form of notice. Further, the Magistrate Judge recommended that the Motion for Sanctions be DENIED.

Accordingly, upon this Court's independent examination of the file and upon due consideration of the Magistrate Judge's report and recommendation, the report and recommendation is ADOPTED and confirmed and made a part hereof.

IT IS SO ORDERED.

DONE AND ORDERED.

REPORT & RECOMMENDATION¹

SNYDER, United States Magistrate Judge.

This cause is before the Court on Plaintiffs' Motion to Approve Notice to Potential Class Members (Doc. #12; hereinafter Plaintiffs' Motion), filed on January 10, 1994, and Defendants' Motion for Sanctions (Doc. # 19; hereinafter Defendants' Motion), filed on February 7, 1994. An evidentiary hearing was held on July 15, 1994.

Background

This action was filed in the Circuit Court of Duval County in the name of David S. Tucker and all employees of the Defendants similarly situated. Complaint (Doc. # 2), filed on September 2, 1993, at 1. Plaintiffs allege violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (hereinafter FLSA), specifically asserting each of the Defendants employed him and others similarly situated for periods longer than forty hours per week without paying them at a rate of at least one and one-half times their regular pay rate, contrary to the requirements of 29 U.S.C. § 207. Complaint at Para. 1. Plaintiffs contend those similarly situated "were or are employed as raters, billing clerks, non-management office staff, or other employees who were or are not exempt from the provisions of the Act and have not yet learned of the unlawful conduct of the Defendants...." Id. at Para. 3.

On September 2, 1993, Defendants removed the case to this Court. Notice of Removal (Doc. # 1), filed on September 2, 1993. Plaintiff Tucker has since settled his individual claim with the Defendants. See Stipulation of Dismissal With Prejudice of Plaintiff Tucker's Individual Claims (Doc. # 26), filed on February 16, 1994. However, two former employees of the Defendants have consented to join the action in both an individual and representative capacity.

Plaintiffs seek Court approval for notification of this lawsuit to be provided to other employees of the Defendants, so they might opt-in to the matter if they desire. Post Hearing Memorandum in Support of Motion to Approve Notice to Potential Class Members and in Opposition to Motion for Sanctions (Doc. # 69; hereinafter Plaintiffs' Post-Hearing Memorandum), filed on July 27, 1994, at unnumbered 1. See also Memorandum in Support of Motion to Approve Notice to Potential Class Members (Doc. # 13; hereinafter Plaintiffs' Memorandum), filed on January 10, 1994, at unnumbered 2. Defendants argue the standard to establish class notification has not been met. Defendants' Memorandum of Authorities in Light of Evidentiary Hearing (Doc. # 68; hereinafter Defendants' Post-Hearing Memorandum), filed on July 27, 1994, at 1-2.

Additionally, Defendants allege improper conduct by Plaintiffs; specifically, it is contended Plaintiffs sought unauthorized contact with employees of Defendants for the purpose of informing them of the lawsuit and persuading them to opt-in. Memorandum in Support of Defendants' Motion for Sanctions (Doc. # 20), filed on February 7, 1994, at 4-5. Plaintiffs assert any such communications were not designed to induce the recipients to join the lawsuit. Memorandum in Opposition to Defendants' Motion for Sanctions (Doc. # 27; hereinafter Plaintiffs' Memorandum II), filed on February 25, 1994, at unnumbered 2-3.

Evidence and Testimony

Testimony of Rebecca Sue Tucker

Rebecca Sue Tucker was employed as a terminal rate clerk at the Gator Freightways terminal in Jacksonville between March 1990, and March 1993. She is the wife of David S. Tucker, who was also employed at the Gator terminal for a brief period. Her employer was actually Defendant Labor Leasing, as this entity issued her paycheck. At a later date, her paycheck was issued by Regal Express.

As a rate clerk, her responsibilities were to put charges on bills brought in by drivers, and to provide rate quotes. This was a clerical position; other clerical positions at the Gator terminal included cashiers, receptionists, OS & D clerks², and customer service. Rate clerks were expected to work ten hours per day, and she worked five days per week. She worked more than forty (40) hours every week, as did her husband, who was the day shift rate clerk. Because she spoke with them over the telephone, she knew rate clerks in other Gator, Greenwood and R & L terminals worked more than forty (40) hours per week also. She also spoke with several billers in the Wilmington terminal who claimed to have worked over forty (40) hours per week. Several employees from other terminals complained to her about not being paid overtime wages. These individuals were Lou Pati from Miami, Jack Borders from Lakeland, and Mike Melvin and Rob Schlake from Wilmington.

Ms. Tucker did not work much with the OS & D personnel, but did interact with the billing clerk at Jacksonville and those at other terminals. She would fax bills to the R & L billing clerk in Wilmington on occasion.

When Ms. Tucker was hired, she received an employee handbook from Labor Leasing (Plaintiffs' Exhibit 1). During her employment at the Gator terminal, she did not receive another handbook. She was told by Larry Roberts, Sr., the President and CEO of R & L, to inform customers Gator, R & L Transfer, Labor Leasing and Regal Express were all one company. Her work would benefit Defendant R & L Transfer when she would rate a shipment picked up in Jacksonville going to Wilmington, Michigan, West Virginia or Pennsylvania. She would rate the shipment and R & L would deliver it. Her work also benefited Gator Freightways in the same manner when one of the Gator terminals would deliver the shipment.

Testimony of Vera N. Jeffries

Vera N. Jeffries was employed at the Jacksonville terminal for about twenty (20) years. From 1990 until February 1991, she was employed by Gator Freightways in the OS & D department. At this position, she would find places for freight which was "checking over," and determine where the freight belonged. Damaged freight was put into an area known as the salvage hole, shrinkwrapped, and sent to the salvage department in the R & L Transfer terminal in Wilmington. Ms. Jeffries used the computer system at the Jacksonville terminal for the OS & D, claims and salvage business.

As an OS & D clerk, Ms. Jeffries communicated with all the Florida terminals, in addition to the terminal in Atlanta. She also dealt with the head of claims in the Wilmington terminal, who served as her supervisor. Her primary dealings with the Wilmington terminal were with an individual in the Claims Department, and she spoke with this person on a daily basis. Her paychecks were issued only by Labor Leasing after 1990, and she had nothing to do with any companies other than R & L and Labor Leasing.

After 1990, Ms. Jeffries worked more than fifty (50) hours per week. Her last pay stubs from Gator (Plaintiffs' Exhibit 2) indicate she worked forty (40) hours per week. During this time, she does not recall how many hours she worked, but the standard was to work fifty (50) hours per week, even though the time card indicated otherwise. In addition to her salary, she received health insurance from either R & L or Labor Leasing. She had health insurance from the "old Gator," but it was switched to R & L.

Ms. Jeffries first inquired into joining this lawsuit in the summer of 1993, and consulted Plaintiffs' law firm prior to August, 1993. She spoke with several people, including Mrs. Tucker, about the lawsuit, in the summer of 1993.

Testimony of David S. Tucker

David S. Tucker was employed as a rate clerk at the Gator terminal in Jacksonville from December 1990 until March 1992. He did not work for Gator at any other terminal. At this position, he quoted rates to customers, rated bills as they came in, and performed some tariff research. His paycheck was issued by Labor Leasing for part of his employment, and afterwards was issued by Regal Express. His work would benefit R & L if a shipment was from the Jacksonville terminal area to an R & L service area. Except for occasions when he had sick days, he did not work less than fifty (50) hours per week. His salary amount was supposedly based on a fifty (50) hour week, but he was not paid additional wages if he worked more than fifty hours.

In his work at Gator, he discussed rate applications for particular shipments with rate clerks from terminals in West Palm Beach, Miami, Tampa, Orlando, Tallahassee, and Pensacola in Florida; Savannah, Tifton and Atlanta in Georgia; Wilmington and Findlay in Ohio; and Detroit, Michigan. The terminals located in Florida and Georgia were designated Gator Freightways terminals, and those in Ohio and Michigan were...